United States District Court, D. Massachusetts
MARCOS DaSILVA and MATTEUS FERREIRA, on behalf of themselves and all others similarly situated, Plaintiffs,
BORDER TRANSFER OF MA, INC., Defendant.
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge
DaSilva and Ferreira used to work as delivery drivers for
Defendant Border Transfer. They claim that Border Transfer
improperly treated them as independent contractors when they
were in fact employees, and that as a result Border Transfer
unlawfully deducted certain business expenses from their pay.
Border Transfer moves to dismiss on the basis that the
plaintiffs' claims are preempted by the Federal Aviation
Administration Authorization Act of 1994
(“FAAAA”), 49 U.S.C. § 14501(c)(1).
Transfer fails to show that the plaintiffs' claims are
preempted. However, the unjust enrichment claim is barred
because there is an available remedy at law. Border
Transfer's motion to dismiss (Docket No. 8) is
DENIED as to Count I of the complaint and
ALLOWED as to Count II of the complaint.
Transfer provides delivery services for large retail stores
such as Sears. The plaintiffs worked as delivery drivers for
Border Transfer delivering Sears merchandise. Their
relationship with Border Transfer was governed by Contract
agreements stated that the plaintiffs were independent
contractors. However, the plaintiffs allege that they should
have been classified as employees because Border Transfer
exercised substantial control over their drivers and the
drivers did not have the ability to maintain an independently
established business. The drivers were required to report to
a Border Transfer/Sears facility five mornings a week, where
they were instructed on how to assemble equipment and how to
interact with customers. They were directed to load goods on
their trucks in a specific order and to deliver them at
specific times, according to daily manifests provided by
Border Transfer. The drivers were required to log each
delivery on a cell phone application. They also had to be in
contact with Border Transfer and Sears dispatchers throughout
the day regarding the status of deliveries, cancellations,
and rescheduling. Each day, the drivers had to return
haul-aways (equipment removed from customers' homes or
businesses) to the warehouse.
drivers were not permitted to use helpers unless those
helpers passed Border Transfer's background checks.
Border Transfer could terminate those helpers at any time.
drivers were required to own or lease a truck that met Border
Transfer's specifications. They were also required to
carry insurance at levels dictated by Border Transfer.
Transfer monitored customer ratings for each driver and would
suspend drivers whose ratings dropped below a certain level.
Border Transfer could also terminate the contract with the
drivers without cause.
expenses were deducted directly from drivers'
compensation, including when Border Transfer determined that
a delivery had been made in an unsatisfactory manner -- for
instance, when goods or consumer property were damaged. The
cost of uniforms was also deducted, as was the cost of paying
for a replacement driver when a driver could not complete a
delivery. Certain expenses, such as worker's compensation
coverage, cargo insurance, fuel costs, vehicle maintenance
costs, and payments to helpers, were borne by the drivers.
their agreements with Border Transfer expired, the plaintiffs
filed this putative class action complaint. They asserted two
counts: (1) violation of the Massachusetts Wage Law, Mass.
Gen. Laws ch. 149, § 148, and (2) unjust enrichment.
Both causes of action claimed that Border Transfer improperly
treated the plaintiffs as independent contractors rather than
as employees, and as a result unlawfully deducted certain
expenses from their pay.
August 8, 2016, Border Transfer moved to dismiss on the basis
that the ...